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1 Who Should Be Allowed to Sell Water in California? Third-Party Issues and the Water Market Ellen Hanak 2003 PUBLIC POLICY INSTITUTE OF CALIFORNIA

2 Library of Congress Cataloging-in-Publication Data Hanak, Ellen. Who should be allowed to sell water in California? : third-party issues and the water market / Ellen Hanak. p. cm. Includes bibliographical references. ISBN: Water transfer California. 2. Water supply California. I. Title. HD1694.C2H ' dc Copyright 2003 by Public Policy Institute of California All rights reserved San Francisco, CA Short sections of text, not to exceed three paragraphs, may be quoted without written permission provided that full attribution is given to the source and the above copyright notice is included. PPIC does not take or support positions on any ballot measure or state and federal legislation nor does it endorse or support any political parties or candidates for public office. Research publications reflect the views of the authors and do not necessarily reflect the views of the staff, officers, or Board of Directors of the Public Policy Institute of California.

3 Foreword Over 40 years ago, Jack Hirshleifer, James C. DeHaven, and Jerome W. Milliman introduced the idea of California water markets in Water Supply: Economics, Technology, and Policy. Since then, numerous presentations have shown how California s existing system of aqueducts could be used to move water to the highest bidder. Why then has the development of water markets a policy that might provide enough water for decades of growth taken so long to gain acceptance? Part of the answer is provided in Ellen Hanak s report, Who Should Be Allowed to Sell Water in California? Third-Party Issues and the Water Market. The report notes many obstacles to the expansion of water markets; however, Hanak focuses on a key player local governments. Local officials, especially in rural areas, are fearful of losing a resource that is a key component of future economic growth. And the specter of bone-dry Owens Valley haunts residents, officials, and investors alike. For these and other Californians, the problem can be put very simply: No water, no life. Although the amount of water sold through markets is only 3 percent of all water used in the state, 22 of the state s 58 counties have adopted ordinances restricting groundwater exports. With the rise of groundwater transfers during the drought of the early 1990s, the fear of uncontrolled mining of the aquifers became widespread in many rural counties. In effect, the counties through a burdensome review process and the prospect of negative public opinion have discouraged potential sellers from seeking permits in the first place. Hanak finds that, controlling for other factors, these counties have been selling less water, and more of their sales have been to in-county buyers. The report also points to the need for effective policies pertaining to land fallowing, or idling crops to sell water. If fallowing affects other employment and business opportunities, a case can be made for economic mitigation. Some stakeholders are concerned, however, that iii

4 direct compensation to those whose businesses are affected would establish a dangerous legal precedent, generate excessive claims, and create unrealistic expectations about the potential community benefits from water transfers. Given such concerns, communities may prefer the status quo to the risk of losing the benefits that flow from the control of this precious resource. Fair and sustainable rules for fallowing would go a long way toward balancing the needs of local users with the potential gains that result from water transfers. Finally, the report helps explain why it has taken so long to implement water markets. The concerns expressed at the local level including the prospect of rapidly growing urban centers appropriating water without adequate compensation are as real as ever. Nevertheless, Hanak shows that there are solutions in the making, and that with proper concern for users, local communities, and the environment, markets could play a key role in addressing California s water supply problem for decades to come. David W. Lyon President and CEO Public Policy Institute of California iv

5 Summary At current patterns of water use, California faces the prospect of chronic shortages of this vital resource before the year Among the measures that can alleviate supply and demand imbalances is the development of a water market. A market enables the historical holders of water rights mainly farmers in the agricultural heartland to transfer water to other users willing to pay more for it. Potential buyers include urban and industrial users, other farmers with higher-value crops and more limited supplies, and environmental programs to support fish and wildlife habitats. Although significant trading has occurred since the state began promoting this solution in the late 1970s, obstacles remain. In particular, communities in the source regions have raised concerns over the potential adverse effects of water sales on local groundwater users and the local economy. In the absence of clear state-level policy on these third-party effects, many counties are attempting to gain an oversight role through local ordinances. This study examines the issue of third-party effects of water transfers in California from the economic, institutional, and legal perspectives. It also evaluates potential mechanisms for resolving the conflicts between those wishing to trade in water and the wider community. Drawing on a range of data sources, including a new database on water transfers and an extensive set of interviews with water users and county officials, the analysis aims to answer the following questions: How has resistance to water transfers affected California s water market to date, and what are the likely effects of that resistance? What distinguishes cases where conflicts have been successfully resolved from the stalled deals? Are revisions of state water law a necessary or desirable means for dealing with third-party issues, or should solutions be left to local institutions? We begin with some background on the water market and the rise in local resistance to it. v

6 Water Market Trends Jumpstarted by a prolonged drought in the late 1980s and early 1990s, California s water market is now a firmly established if modest feature of the state s water allocation process, with annual trades accounting for roughly 3 percent of water use. The state has been a major player, notably by running drought year water banks and purchasing water for the environment. As expected, agricultural water districts are the main suppliers, with Central Valley farmers typically accounting for three-quarters of all sales and farmers in the desert valleys of Imperial and Riverside Counties furnishing the rest. Contrary to expectations, urban agencies have played a limited role in market growth. Instead, the main sources of demand have been directly and indirectly linked to new environmental regulations. Direct purchases for instream uses and wildlife reserves have accounted for over one-third of the increase in purchases since The other growth sector, accounting for over half of market expansion, has been agriculture in the San Joaquin Valley. Farmers there whose contractual water deliveries have been cut back by environmental mitigation programs have turned to the market for replacement water. However, municipal agencies are the principal buyers of long-term and permanent contracts, which account for roughly 20 percent of all sales. Legislation passed in 2001 requiring that local governments demonstrate adequate water supplies for development should increase urban demand for long-term water transfers. Municipalities success in forging these deals and ensuring new supplies will depend on their ability to smooth the waters of community resistance in the source regions. The Rise of Local Resistance to the Water Market Concerns in the source regions relate to two distinct types of negative effects of water marketing on third parties. When sales reduce the quantity or degrade the quality of water available to other users, this constitutes a physical externality. California law protects other surface water users, including fish and wildlife, from such effects under the no injury statutes of the Water Code. These protections do not extend to groundwater users, however, because groundwater a major source of vi

7 supply in many regions is not regulated by the state. Once the state made it clear that the market was open for business during the early 1990s drought, the fear of uncontrolled mining of the aquifers became widespread in many rural counties. The other type of negative effect can occur when farmers idle cropland to sell water. Any resulting losses to the local economy in jobs, sales, or local tax revenues constitute an economic effect or pecuniary externality. There is no legal tradition in California or elsewhere in the United States for protecting third parties from this type of effect. The state s widespread use of fallowing contracts to purchase water for the 1991 drought water bank generated considerable discord in some Sacramento Valley counties, where local businesses and farm workers were affected. Rural communities have responded to the lack of state-level, thirdparty protections by putting in place local restrictions on water marketing. By late 2002, 22 of the state s 58 counties had adopted ordinances requiring a permit to export groundwater or to extract groundwater used in substitution for exported surface water. Counties right to invoke police powers to protect groundwater resources was upheld in a 1994 appellate court decision favoring Tehama County. In effect, the absence of state protections for groundwater users provides the legal justification for county-level action. In some counties, the ordinances reflect a broader intent to discourage any type of transfer whether or not linked to groundwater that might harm the local economy. Counties do not have the legal authority to ban crop idling for water sales, but some water districts have adopted policies to that effect. This appears mainly to be a practice of districts whose boards are elected by the community at large rather than districts where only landowners have a vote. The recent controversy over a proposed long-term transfer from the Imperial Irrigation District to San Diego erupted when Imperial whose board is elected by popular vote was pressured to fallow land despite district policy against the practice. Landowner-run districts have been more likely to fallow land for the water market, especially in periods of low crop prices when the water is less valuable in agricultural uses. vii

8 Effects of County Restrictions on the Water Market To measure the effects of local resistance on the water market, the study assessed the role of county ordinances restricting exports. In counties with ordinances, those wishing to export groundwater or surface water that is replaced by additional groundwater pumping can go through an environmental review process to obtain a county permit. The very low number of permit applications suggests, however, that this process is more useful as a deterrent than as a screening mechanism. High up-front costs and the likelihood of negative public opinion guiding the decision process are both factors discouraging parties from filing. A lack of groundwater permits will not necessarily block transfers if alternatives such as land fallowing are available and acceptable to farmers and their water districts. In the aggregate, however, there is likely to be an effect on the market, both in reducing total sales and in shifting some water to in-county users, who will typically be willing to pay less than outsiders. A statistical analysis of county trading behavior from 1990 to 2001 provides evidence of both effects. In any given year, the presence of an export restriction reduced a typical county s trades by 14,300 acrefeet and shifted 2,640 acre-feet to in-county buyers. Since 1996, total out-of-county sales, or exports, were reduced by 932,000 acre-feet, or 19 percent, and total sales by 787,000 acre-feet, or 14 percent. Overall, the negative market effect of county restrictions cancelled out the positive effect of a generally improved trading environment resulting from state and federal regulatory changes. The Scope for Resolving Third-Party Issues Local resistance is likely to remain a force to reckon with in market development, especially for the long-term, interregional transfers from agricultural users that municipalities will seek to support growth. Moving forward requires finding solutions that provide communities in source regions with adequate safeguards against the potential negative consequences to local water users and the local economy. What have the experiences to date taught us about the scope for positive resolution of viii

9 these conflicts, and what role can policy play in this process? The responses are distinct for the two types of third-party effects. From Groundwater Protection to Groundwater Management Groundwater is a shared resource, with many users drawing from the same aquifer. In the absence of regulation, these users do not have clear incentives to avoid overexploiting the resource. Because the state does not exercise authority over groundwater, the onus for developing management systems falls on local users. Concerns over the groundwater effects of trade have arisen in California s rural heartland, where local management systems are inadequate or altogether absent. In this context, county ordinances restricting exports can be justified as a firststep precautionary measure to protect local water users from the effects of an unbridled water market. This defensive strategy is nevertheless suboptimal from the standpoint of local as well as statewide interests. A policy limited to restricting exports does little to stabilize the aquifer in places subject to overdraft. It also makes it difficult, if not impossible, to make economic use of the underground storage space through groundwater substitution transfers and banking of imported surface water. Attaining these goals requires a more assertive, comprehensive strategy of groundwater management that protects local users while providing opportunities to address supply and quality problems and allowing those with sound transfer and banking projects to participate in the market. California s rural areas have so far eschewed the more comprehensive management systems that govern groundwater in Southern California and in many coastal counties. In these regions, high population densities and special technical problems such as saltwater intrusion have led to the introduction of adjudicated basins and special districts with full regulatory authority over the resource. Nevertheless, there is a movement under way toward more active groundwater management in some of California s rural counties. In some places, the county itself or a special district with countywide jurisdiction has played a convening role for county water users; in others, water districts overlying a shared basin have grouped together to develop a groundwater management plan. ix

10 Key ingredients of active management include the establishment of effective basin monitoring systems and the development of guarantees to mitigate any harm to third parties from market-related activity. A question that remains on the table is whether a strictly voluntary management principle is adequate a policy still favored by many rural Californians or whether target levels and pumping restrictions need to be developed for the program to be effective. Developing effective local groundwater management systems places a central responsibility on local authorities water districts and city and county governments. But the state also has a key role to play, given the statewide benefits of sound local management. Three current forms of state support are appropriate: providing technical assistance, making funds available to support system development, and encouraging the adoption of programs with sound content by attaching conditions to the release of state funds. Once systems are in place, there is also an opportunity for private funding of groundwater infrastructure, especially for municipal supply projects. Mitigating the Economic Effects of Land Fallowing For fallowing, the problem is one of determining the ground rules under which those with access to water rights may take land out of production and sell water to others. Available studies suggest that the aggregate local effects of fallowing have been quite small for programs idling anywhere from 6 to 29 percent of acreage, with local gains from the program largely balancing out local losses. But the modern track record is limited, and popular sentiment in rural areas tends to be shaped by the dire consequences of fallowing for the local economy in the Owens Valley almost a century ago. The key policy issues on the table concern the rules to limit negative community effects: rules on the scale and content of fallowing program design and rules concerning financial mitigation. Both state law and locally determined guidelines already address the first point. Section of the Water Code requires public review of fallowing that exceeds 20 percent of the local water supply. In designing fallowing programs, water districts increasingly include restrictions to maintain the viability of the idled land and to make sure that participating farmers are x

11 not solely in the business of selling water. The economics of fallowing also plays a natural mitigating role. Farmers have incentives to fallow the crops that generate the least profit per acre-foot, and these tend to be the low-value, highly mechanized commodities that generate the lowest onfarm employment and the least value-added through further processing. Even with this combination of operating rules and incentives to limit negative effects to the local economy, there remains the question of whether the community should receive some sort of compensation. At the federal level, there are some precedents for mitigating economic effects when policy changes shift employment and business opportunities in some sectors or regions. With different degrees of success, federal mitigation programs have aimed to assist affected workers and businesses to make a transition to other economic activities. A parallel case could be made for mitigating the economic effects of sizable, long-term fallowing operations, especially if they generate systematic hardships for low-income groups or local governments. In two large long-term deals pending approval, a transfer from the Palo Verde Irrigation District to the Metropolitan Water District of Southern California and one from the Imperial Irrigation District to San Diego, funds have been earmarked for local communities. This will no doubt become a standard component of any future deals of this type, where large volumes of water are sold to distant urban agencies over more than a decade, with expectations of some systematic effects on local employment opportunities affecting low-income immigrant communities. For temporary or intermittent fallowing operations, such as those undertaken in the Sacramento Valley since 2001, there are larger questions about the appropriateness of mitigation. Two buyers, the Department of Water Resources and Metropolitan, have developed a policy to provide mitigation funds, but it remains unclear what damages, if any, merit mitigation. Many are uncomfortable with the term mitigation because it implies the direct compensation of affected parties. In part, this wariness stems from an expectation that the fallowing programs will generate little if any hardship to low-income workers, given the highly mechanized nature of production process for the rice crop being fallowed and the considerable workload generated by land xi

12 maintenance and improvement activities on fallowed acreage. It also stems from a concern that a direct compensation program would establish a dangerous legal precedent, generate excessive claims, and ultimately create unrealistic expectations about the potential community benefits from water transfers. For these reasons, it may make more sense to think of such funds as providing opportunities for community development rather than mitigation. Since 1998, the legislature has considered three bills to institutionalize mitigation, but none has met with approval. Further legislative actions on the fallowing question should be avoided for the time being, for two reasons. First, there is a limited track record on fallowing and no experience with implementing mitigation funds. Second, in the major short- and long-term fallowing programs slated to occur, the transacting parties themselves have been adopting design measures to limit negative effects and setting up funds to benefit the community. These cases provide the opportunity both to assess the consequences of responsible fallowing and to experiment with use of funds for community benefit. If, as the farmers in the Sacramento Valley and Palo Verde argue, the overall effects are not harmful to the local economy, this may help build wider confidence in a new model for fallowing that can displace the ghost of Owens Valley. xii

13 Contents Foreword... iii Summary... v Figures... xvii Tables... xix Acknowledgments... xxi Acronyms... xxiii 1. WATER MARKETING AND THIRD PARTIES... 1 Water Marketing as a Component of California s Water Future... 2 State and Federal Support for Water Marketing... 3 The Rise of Third-Party Concerns in the Selling Regions... 4 The Scope for Resolving Third-Party Issues CALIFORNIA S WATER MARKET, BY THE NUMBERS... 9 Who Can Sell Water and What Kinds Can They Sell?... 9 Overall Market Trends Water for the Environment: A Key Factor in Market Growth Agriculture s Leading Role in Market Supply Most Transfers Are Local or Regional From Farms to Cities: A Key Element of Long-Term and Permanent Transfers Summing Up THE RISE OF LOCAL RESTRICTIONS ON WATER MARKETING The Mobilization of Rural Counties An Overview of Export Restrictions Legal Issues Economic Issues Operational Issues Summing Up xiii

14 4. WHY DO SOME COUNTIES ADOPT EXPORT RESTRICTIONS? Factors That Make a Difference Data on County Water Economy and Institutions Cross-County Results Regional Issues The Mountain Counties: The Legacy of Owens Valley Sacramento Valley: A Balancing Act Between the Surface Water Haves and Have-Nots San Joaquin Valley: Coping with Overdraft and Surface Water Scarcity Summing Up WATER MARKET EFFECTS: DO COUNTY RESTRICTIONS HAVE TEETH? Export Permitting: A Largely Uncharted Territory Effects on the Water Market Data Sources Results Summing Up MITIGATING THE ECONOMIC EFFECTS OF LAND FALLOWING California s Recent Experiences with Land Fallowing DWR s Dry-Year Programs Long-Term Fallowing Along the Colorado River Fallowing in the San Joaquin Valley Future Trends? Economic and Legal Issues of Land Fallowing for Water Sales Economic Incentives and Third-Party Effects Lack of Legal Provisions for Mitigation Are Landowner-Run Water Districts More Likely to Fallow (and Less Likely to Propose Mitigation)? Limiting the Aggregate Negative Effects of Land Fallowing.. 85 Putting Together a Viable Mitigation Program Determining the Scale of Losses Program Content: Targeted or General? xiv

15 Program Administration: Counties or Special Institutions? Mitigation or Community Development? Summing Up FROM GROUNDWATER PROTECTION TO GROUNDWATER MANAGEMENT Mitigating the Effects of Groundwater Transfers Economic and Legal Issues Mitigation Options and Experiences Mitigation Design Issues Ingredients of Effective Groundwater Management Systems Role of Counties and Local Agencies Role of the State Summing Up THE SCOPE FOR RESOLVING THIRD-PARTY ISSUES Local Groundwater Management as the Linchpin of Water Marketing and Water Banking Land Fallowing and Community Development Appendix A. Tracking the Water Market: Data Sources and Caveats B. Groundwater Institutions and Basins C. Predicting County Adoption of Export Restrictions D. Measuring the Effect of Export Restrictions on County Water Sales References About the Author Related PPIC Publications xv

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17 Figures 2.1. Short- and Long-Term Water Transfers in California Since Share of Total Water Transfers, by Type of Market, a. Annual Volumes Purchased, by Type of End User b. Market Share of End Users Nonenvironmental Water Purchases, by Location of Selling Party Adoption of County Ordinances Restricting Exports California Counties with Groundwater Export Restrictions, California s Water-Trading Counties, Market Effects of Export Restrictions Since Market Effects of State and County Policy Environments B.1. California s Counties B.2. Adjudicated Groundwater Basins B.3. Special Groundwater Management Districts B.4. Critically Overdrafted and Special Problem Groundwater Basins Listed in Bulletin xvii

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19 Tables 2.1. Regional Sources and Destinations of Water Average Characteristics of Counties With and Without Export Restrictions Regional Characteristics (County Averages) Study Estimates of the Overall Economic Effect of Land Fallowing A.1. California Short- and Long-Term Water Transfers, by Type of Market A.2. Water Purchases, by Type of End User A.3. Transfers, by Region of Origin and Region of Destination A.4. Source Regions for Environmental Water Purchases A.5. Long-Term Transfers Since A.6. Permanent Transfers of Surface Water Since B.1. C.1. D.1. Counties with Groundwater Protection Ordinances, by Region Effects of County Characteristics on the Probability of Adopting an Export Restriction Summary Statistics for Annual County Water Sales and Water Exports, D.2. Determinants of Annual County Water Sales in 34 Water-Trading Counties, D.3. Determinants of Annual County Water Exports in 34 Water-Trading Counties, D.4. Determinants of Annual County Water Sales in 18 Central Valley Counties, D.5. Determinants of Annual County Water Exports in 18 Central Valley Counties, xix

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21 Acknowledgments This study would not have been possible without the generous assistance of many members of California s water community. Individuals in a wide range of institutions, from local water districts to state and federal agencies, provided the building blocks of the original database on California s water market. County and water district officials and other water experts graciously agreed to be interviewed regarding local responses to the rise of the market. At various stages, the study also benefited from the input of an informal advisory panel. Special thanks go to the attendees of a December 2002 meeting in Sacramento, convened to review a draft of the study s findings and to discuss the policy implications. Attendees included Curt Aikens of the Yuba County Water Agency; Will Boschman of the Semitropic Water Storage District; Chris Campbell of Baker, Manock and Jensen; Jim Easton of Easton Water Resources; David Guy of the Northern California Water Association; Carl Hauge, Jerry Johns, and Rob Swartz of the Department of Water Resources; Richard Howitt of UC Davis; Wendy Illingworth of Economic Insights; Dave Orth of the Kings River Conservation District; Bill Phillimore of Paramount Farms and the Kern Water Bank; Tim Quinn of the Metropolitan Water District of Southern California; Allen Short of the Modesto Irrigation District; Tracy Slavin and Donna Tegelman of the U.S. Bureau of Reclamation; Steve Stroud of the South San Joaquin Irrigation District; Van Tenney of Glenn-Colusa Irrigation District; and Greg Thomas of the Natural Heritage Institute. Although responsibility for the conclusions rests entirely with the author, this feedback was invaluable. I would also like to extend a special thanks to Dave Sunding of UC Berkeley, Mike Kahoe of the San Joaquin Valley Water Users Association, Carol Whiteside and Holly King of the Great Valley Center, xxi

22 and Jim Ganulin of Baker, Manock and Jensen for help in defining the issues in the early stages of the work. Two very capable research associates were key to the research effort. Antonina Simeti did much of the painstaking work of creating the database on the water market and pulling together other datasets used in the study. Caitlin Dyckman, a graduate student in the UC Berkeley Department of City and Regional Planning, worked on the evolution of county groundwater policies and conducted many of the interviews with county officials. The study was finalized with the help of Greg Thomas, Richard Howitt, Howard Schatz, and Ricardo Ramirez, who provided written reviews, and Peter Richardson and Patricia Bedrosian, who provided editorial assistance. xxii

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